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United States District Court for the Central District of California
January 14, 2010, Decided; January 14, 2010, Filed
CV 09-8872 SVW (VBKx)
[*1140] ORDER GRANTING PLAINTIFF'S EX PARTE APPLICATION TO REMAND  AND REMANDING CASE TO LOS ANGELES COUNTY SUPERIOR COURT
Plaintiff filed a Complaint against Defendant in state court. Defendant removed the case to federal court, arguing that Plaintiff's Complaint is preempted by the Copyright Act. Plaintiff filed an ex parte application to remand the case to state court. For the following reasons, the Court grants Plaintiff's application and remands the case to state court.
The following facts are taken from Plaintiff's complaint, which for present purposes must be taken as true. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); see also Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009).
Plaintiff No Doubt is a music group. Defendant Activision Publishing, [**2] Inc. is a video game manufacturer. On May 21, 2009, Plaintiff and Defendant entered into a contract whereby Plaintiff licensed Defendant a specific, limited and restricted use of Plaintiff's name, likeness, and musical works in Defendant's new video game, Band Hero. Under the agreement, Plaintiff permitted Defendant to create animated character representations, or "avatars," of Plaintiff's likeness for the limited purpose of allowing the characters to perform three of Plaintiff's own musical works. Plaintiff asserts that the Agreement contained express limitations on Defendant's uses of Plaintiff's likeness, and that any other use of Plaintiff's likeness would be subject to Plaintiff's approval.
According to the Complaint, Defendant created in Band Hero the ability to have lifelike embodiments of Plaintiff and its individual band members sing, dance and perform over sixty songs that were neither contracted for nor approved of, and have never been performed, by Plaintiff. Plaintiff asserts Defendant hired actors to impersonate Plaintiff and enable the No Doubt avatar characters to perform these sixty plus unapproved songs.
The video game includes a Character Manipulation Feature that [**3] allows game-players to manipulate each character's likeness to engage in unapproved acts with other characters included in the game. This feature allows users to cause members of No Doubt to perform vocally as soloists without their band members, including having male members sing with female voices. Plaintiff argues that the Agreement only allowed the use of Plaintiff's name and likeness as a collective [*1141] group, and not as solo artists. Plaintiff further asserts that it never agreed to allow the use of its name and likeness for the Character Manipulation Feature of Band Hero.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
702 F. Supp. 2d 1139 *; 2010 U.S. Dist. LEXIS 35957 **
NO DOUBT, a California Partnership, Plaintiff, v. ACTIVISION PUBLISHING, INC., a Delaware Corporation, Defendant.
Subsequent History: Related proceeding at Doubt v. Activision Publ., 2011 Cal. App. LEXIS 174 (Cal. App. 2d Dist., Feb. 15, 2011)
preempted, likeness, recording, Copyright Act, subject matter, removal, song, preemption, videogame, licensed, musical, rights, cause of action, authorship, asserts, state court, holder, film, right of publicity, plaintiff's claim, exclusive right, misappropriation, contracted, state-law, medium, Band, federal court, appellants', photograph, tangible
Civil Procedure, Removal, Specific Cases Removed, General Overview, Jurisdiction, Subject Matter Jurisdiction, Postremoval Remands, Motions for Remand, Evidence, Burdens of Proof, Preliminary Considerations, Inferences & Presumptions, Presumptions, Jurisdiction Over Actions, Exclusive Jurisdiction, Copyright Law, Civil Infringement Actions, Federal Court Jurisdiction, Federal Questions, Federal Questions, Well Pleaded Complaint Rule, Constitutional Law, Supremacy Clause, Federal Preemption, Constitutional Copyright Protections, Federal & State Law Interrelationships, Scope of Copyright Protection, Subject Matter, Common Law, Governments, Courts, Torts, Invasion of Privacy, Appropriation, Defenses, Protected Subject Matter, Musical Works, Audiovisual Works & Motion Pictures, Audiovisual Works, Congressional Duties & Powers, Copyright & Patent Clause